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In: Double Recovery in Investment Arbitration

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Leyla Bahmany

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Dar Hadith al Hassania

Abstract

This book analyses the risk of double recovery in investment arbitration and suggests a solution to the problems it creates. The risk of double recovery has not been thoroughly addressed by investment arbitration tribunals or commentators, and this has resulted in host states’ concerns about the integrity of the ISDS system. The solution that is set forth in this work neither suggests a fundamental change to present legal doctrines and practice, nor requires a fundamental change to the regulatory system to take place in order for the solution to become operative. The proposed solution consists of two parts: first, recognising the prohibition of double recovery as a principle in international investment law; and second, setting out a legal mechanism to implement the principle in order to avoid double recovery. The mechanism (which covers both scenarios of parallel proceedings and sequential proceedings) utilizes three procedural tools: the res judicata principle, the lis pendens principle, and the power of tribunals/courts to stay proceedings. Traditionally, for res judicata and lis pendens to be applicable, a triple identity test (same parties, same cause of action, and same relief/object) must be met. The book argues that the traditional application of the identity test in this international context is misguided, and proposes instead a coherent, principled identity test that is in line with the underlying policies of international investment law. The book also explains that the term “double recovery” does not entirely correspond to the phenomenon it is known to represent and suggests that the term “double compensation” be used instead.

Index

A

Abuse of process

214

259

260

Admissibility

difference between admissibility and jurisdiction

302

objection

overlapping claims

Alter ego doctrine

B

Bankruptcy/insolvency

difference between bankruptcy and insolvency

380

investment vehicle’s bankruptcy/insolvency

380

liquidation v. rehabilitation

381

386

C

Causation principle

definition

253n1515

objective criterion v. subjective criterion

255

257

physical proximity

257

relationship to the prohibition of double compensation . See see Prohibition of double compensation principle

remote/indirect loss v. proximate/direct loss

255

257

Cause of action

definition in EU law

311

definition in French law

311

definition in icj case law

311

definition in isds case law

definition in US law

ceta

Claim

claim preclusion

238

323

contract claim/treaty claim

counterclaim

derivative claim

difference between claim and cause of action in US law

overlapping claims

Company

interposed company

investment vehicle

separate legal personality . See see Corporate separateness principle

Consent

as a consolidation requirement

193

as a jurisdictional requirement

206

305

as a requirement for the transfer of shares to the state

198

as a requirement in Rule 44 of the 2006 icsid Arbitration Rules

215

whether states have consented to be exposed to multiple claims

287

whether states have consented to pay double compensation

287

296

Consolidation/coordination

definition

191

relationship to the triple identity test

196

solution to double compensation

Corporate separateness principle

entity shielding

in domestic law

209

in international investment law

209

three limbs

Counterclaim. See see Claim

Customary international law

meaning of “accepted as law”

266

meaning of “general practice”

recognition test

Cut-off point

D

Damages

damnum emergens (expenses incurred)

difference between damages and compensation

discounted cash flow (dcf)

flow-through

lucrum cessans (lost profits)

methods of valuation . See see Valuation

miscalculation

Derivative claim. See see Claim

Double compensation

actual double compensation v. the risk of double compensation

best phase in the proceeding to deal with the double compensation problem (preliminary phase v. merits/damages)

297

claims vulnerable to double compensation

definition and requirements

difference between double compensation and miscalculation of damages

difference between double compensation, double recovery, double payment, and double counting

existence of the problem

191

197

286

first ISDS case

identifying the overlapping claims

307

iias including a provision on the prohibition of double compensation

291

impact of double compensation on the psychological equation between investors and states

293

isds case law (analysis)

isds case law (statistics)

list of objecting states

265

prohibition of double compensation . See see Prohibition of double compensation principle

relationship between the double compensation problem and the principle of causation

255

relationship between the double compensation problem and the principle of corporate separateness

relevance of international human rights law

root cause

scenarios (all)

scenarios (common)

scenarios (exceptional)

373

second deciding forum

193

solution (suggested by the author)

388

solutions (suggested by others)

191

states’ consent to pay double compensation

287

291

undertaking not to seek double compensation

216

229

Double counting

difference between double counting, double recovery, double compensation, and double payment

Double payment

difference between double payment, double recovery, double compensation, and double counting

Double recovery. See see Double compensation

Draft Convention on the International Responsibility of States for Injuries to Aliens

251

273

348

E

Electa una via

relationship to the fork-in-the-road and waiver clauses

219n1401

Energy Charter Treaty (ect)

292

Estoppel

collateral estoppel and direct estoppel . See see Issue preclusion

issue estoppel . See see Issue preclusion

principle of estoppel

320

Expropriation

198

F

Foreign direct investment

Fork-in-the-Road (fitr)

definition

219

relationship to res judicata and lis pendens

222

solution to double compensation

220

229

statistics (iias containing a fitr clause)

223

statistics (isds cases involving fitr)

221

triple identity test

220

222

Full reparation principle

definition

253n1515

relationship to the prohibition of double compensation . See see Prohibition of double compensation principle

Fundamental Basis test

342

G

General principles of law (gpls)

a source of international law

261

definition

272

274

process of identifying a gpl

271

275

Good faith in the exercise of rights principle

definition

259n1544

relationship to the prohibition of double compensation . See see Prohibition of double compensation principle

Group-of-companies doctrine (single-economic-reality doctrine)

319

325

I

icsid

Additional Facility Rules

annulment committee

Arbitration Rules

Convention

Identity test

constituting elements/requirements

309

311

double identity test v. triple identity test v. quadruple identity test

309

practice of ISDS tribunals (big picture)

309

practice of ISDS tribunals in relation to lis pendens

230

practice of ISDS tribunals in relation to res judicata

230

practice of ISDS tribunals in relation to the fork-in-the-road clause (FITR)

221

practice of ISDS tribunals in relation to the same legal bases requirement

329

practice of ISDS tribunals in relation to the same parties requirement

320

relaxing the test v. adapting the test

312

step by step guide to adapting the test

318

International Bar Association (iba)

357n1950

International Chamber of Commerce (icc)

194

International Court of Justice (icj)

Barcelona Traction

Diallo

elsi

icj’s approach to admissibility and jurisdiction

303

304

icj’s position on the identity of legal bases

250

North Sea Continental Shelf Cases

263

265

266

Reparation for Injuries Suffered in the Service of the United Nations

Statute

International law

customary international law

261

diplomatic protection

202

fragmentation

294

general principles of law . See see General principles of law (GPLs)

sources

International Law Association (ila)

International Law Commission (ilc)

commentary to the final draft of the Vienna Convention on the Law of Treaties (VCLT)

289

Draft Articles on State Responsibility

255

263

273

Draft Conclusions on Identification of Customary International Law

264

Study Group on the Fragmentation of International Law

294

International Valuation Standards Council (ivsc)

336

Investment

broad definition v. narrow definition

shareholders’ claims for injury to the investment vehicle’s assets

246

287

289

Investment Court System

224

Iran-US Claims Tribunal

isds

integrity

premise

Issue preclusion

collateral estoppel and direct estoppel

232

common law and civil law traditions

237n1475

definition

232

difference between issue preclusion and claim preclusion

238

323

isds case law (statistics)

233

relationship between issue preclusion and res judicata

231

232

solution to double compensation

triple identity test

J

Jurisdiction

objection

overlapping claims

214

L

Lis pendens

a general principle of law

227

advantages over other suggested solutions to double compensation

228

308

definition

228

isds case law (statistics)

230

solution to double compensation

triple identity test

London Court of International Arbitration (lcia)

194

M

Multilateral Investment Court. See see Investment Court System

Multilateral Standing Body/Mechanism. See see Investment Court System

Multiplicity of proceedings. See see Proceeding

N

nafta

Nationalization

Negotiation (renegotiation)

363

No-U-turn clause. See see Waiver clause

O

oecd

200

P

Parallel proceedings. See see Proceeding

Permanent Court of International Justice (pcij)

Factory at Chorzów

249

254

263

Policy/underlying policy

in corporate law

202

in international investment law

striking a balance between conflicting policies

Principle

difference between a principle and a rule

263n1557

294n1679

Proceeding

administrative

bifurcated

efficiency

merits phase

multiple

parallel

preliminary phase

sequential

stay

Prohibition of double compensation principle

difference between the principle of prohibition of double compensation and the no reflective loss principle

existence of the principle in English law

278

existence of the principle in French law

282

existence of the principle in German law

284

existence of the principle in international law

249

existence of the principle in US law

279

how to apply the principle in treaty interpretation

294

isds case law (statistics)

252

relationship between the principle of prohibition of double compensation and the principle of good faith (the prohibition of abuse of rights)

258

relationship between the principle of prohibition of double compensation and the principles of full reparation, causation, and prohibition of unjust enrichment

253

relationship between the principle of prohibition of double compensation and the underlying policy in international investment law

286

scope of application of the principle

253

258

status of the principle in international law (a principle of customary international law or a general principle of law [GPL])

261

waiver issue (whether states have waived the protection offered by the principle)

287

waiver issue and a tribunal’s mandate

296

Prohibition of unjust enrichment principle

definition

253n1516

254

relationship to the prohibition of double compensation . See see Prohibition of double compensation principle

R

Reflective loss

difference between reflective loss and direct loss

difference between reflective loss and injury to the investment vehicle’s assets

equivalent term in US law

279

no reflective loss principle

201

256

285

reflective loss in customary international law

285

reflective loss in domestic law

256

285

reflective loss in international investment law

256

285

286

relationship between reflective loss and the principle of causation

256

286

relationship between reflective loss and the principle of corporate separateness

relationship between the no reflective loss principle and the underlying policy in international investment law

286

shareholders’ standing to recover . See see Shareholders

valuation method . See see Valuation

Res judicata

a general principle of law

227

advantages over other suggested solutions to double compensation

228

308

claim preclusion v. issue preclusion

238

definition

228

ISDS case law (statistics)

229

relaxed version

234

solution to double compensation

triple identity test

Restatement (Fourth) of the Foreign Relations Law of the United States

261n1549

Restatement (Second) of Judgments

Restatement (Third) of the Foreign Relations Law of the United States

261n1549

275

275n1616

S

Shareholders

direct/indirect

majority/minority

minority

standing

Shareholders’ claims

assumption in domestic law

247

economic reality

former shareholders

373

374

investment vehicle’s bankruptcy/insolvency . See see Bankruptcy/insolvency

relationship between shareholders’ claims and the principle of corporate separateness

relationship to the principle of estoppel

322

restricting the admissibility of shareholders’ claims (six versions)

200

shareholders’ claims for direct loss

shareholders’ claims for injury to the investment vehicle’s assets

286

shareholders’ claims for reflective loss

states’ consent to be exposed to multiple claims

287

transfer of shares to the state

198

229

Single-economic-reality doctrine. See see Group-of-companies doctrine

Stay. See see Proceeding and also Tribunal

Stockholm Chamber of Commerce Arbitration Institute (SCC)

194

T

Treaty interpretation

212

288

289

Tribunal

discretion

inherent power

sua sponte

Triple identity test. See see Identity test

U

Umbrella clause

342

345

346

uncitral

Arbitration Rules

Secretariat

Working Group iii

US Model bit

usmca

V

Valuation

methods of valuation of reflective loss

methods of valuation of the diminution in value of shares

336

Vienna Convention on the Law of Treaties (vclt)

W

Waiver clause (no-U-turn clause)

definition

219

solution to double compensation

220

225

229

statistics (IIAs containing a waiver clause)

224

triple identity test

223

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Double Recovery in Investment Arbitration

Toward a Principled Treatment of Double Compensation

Series: Nijhoff International Investment Law Series, Volume: 24

Cover Double Recovery in Investment Arbitration

E-Book ISBN:: 9789004549463

Publisher:: Brill | Nijhoff

Print Publication Date:: 03 Aug 2023

Subjects
- International Law

Front Matter

Part I Contours of the Problem

Part II Existing Approaches to Double Compensation

Part III Restating the Law on Double Compensation

Appendices

Back Matter

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Index

Abstract

Index

A

B

C

D

E

F

G

I

J

L

M

N

O

P

R

S

T

U

V

W

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Double Recovery in Investment Arbitration

Toward a Principled Treatment of Double Compensation

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